IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20110024640 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Purple Heart and any other awards he is entitled to.

2.  The applicant states, in effect, he is entitled to awards as a result of receiving three gunshot wounds while serving in Vietnam and believes he did not receive his awards because of a line of duty investigation which stated his wounds were a result of misconduct.  However, in 1976 a decision was made showing the gunshot wounds were not a result of willful misconduct.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Department of Veterans Affairs (VA) Form 21-6796 (Rating Decision).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a 
substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 22 June 1970 and held the military occupational specialty 57A (Duty Soldier).  The highest rank/grade he attained while serving on active duty was private first class/E-3.  

3.  His DA Form 20B (Record of Court-Martial Conviction) shows he was convicted by a summary court-martial on 23 September 1970 for striking another Soldier on the hand and head with a pool cue.

4.  He served in Vietnam from 12 August 1971 to 29 September 1971.  His DD Form 20 (Enlisted Qualification Record) shows:

* He was assigned to the 228th Supply and Services Company (Direct Support) (Combat Support), Vietnam 
* He qualified as a sharpshooter with his M-16 rifle on 14 August 1970
* He received four "unsatisfactory" conduct and efficiency ratings

5.  His record does not contain evidence of any award recommendations or orders.

6.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 September 1971 and a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 5 October 1971.  Both forms state that his gunshot wounds were inflicted by U.S. Military authorities after he shot and killed two Soldiers.  He had been firing his weapon at military authorities as he tried to escape and was shot three times as military authorities attempted to capture him. 

7.  He was honorably discharged on 20 October 1972 by reason of physical disability with entitlement to severance pay.  His DD Form 214 shows he completed 2 years, 3 months, and 29 days of net active service, of which 1 month and 10 days was credited as foreign service.  This form further shows he received the National Defense Service Medal and the Vietnam Service Medal.

8.  Army Regulation 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign.  Appendix B shows that during his service in Vietnam, participation credit was awarded for the Consolidation I campaign from 1 July 1971 to 30 November 1971.
9.  DA Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his service his unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 20 July 1965 to 28 March 1973 by DA General Orders (DAGO) Number 8, dated 1974.
10.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  This regulation also provides for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, in effect, contends he is entitled to the Purple Heart and other awards as a result of receiving three gunshot wounds while serving in Vietnam.  

2.  The Purple Heart is awarded for wounds sustained in action against an enemy as a result of hostile action or as a result of friendly fire in the heat of battle.  The applicant was shot and wounded by U.S. military authorities in an attempt to capture him after he shot and killed two Soldiers.  Wounds sustained under such circumstances do not meet the criteria for award of the Purple Heart; therefore, he is not entitled to this award.

3.  The evidence shows he qualified as sharpshooter with his M-16 rifle; therefore he is entitled to have his DD Form 214 corrected to show award of the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  The evidence shows he participated in one campaign while serving in the Republic of Vietnam.  Therefore, he is entitled to one bronze service star for wear on his previously-awarded Vietnam Service Medal and correction of his DD Form 214 to show this award.

5.  General orders awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period he was assigned to the unit in Vietnam.  Therefore, he is entitled to have his DD Form 214 corrected to show this unit award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X__ _  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* adding to his DD Form 214 –

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* One bronze service star for wear on his previously-awarded Vietnam Service Medal
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 
much of the application that pertains to the Purple Heart.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20110024640





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ABCMR Record of Proceedings (cont)                                         AR20110024640



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